Citation Nr: 1134682
Decision Date: 09/15/11 Archive Date: 09/23/11
DOCKET NO. 05-09 314 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUE
Entitlement to service connection for bilateral hearing loss.
REPRESENTATION
Appellant represented by: John R. Prairie, Esq.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Emily L. Tamlyn, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1953 to July 1966. He also had periods of active duty for training (ACDUTRA) and inactive duty for training in the Air Force Reserve from December 1967 to December 1978 and in the National Guard from December 1978 to March 1983.
This issue comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 RO rating decision of the Department of Veterans Affairs Regional Office (RO) in Cleveland, Ohio. In that decision, the RO denied a claim of service connection for bilateral hearing loss.
In November 2005, the Veteran attended a decision review officer (DRO) hearing. A transcript of the hearing has been associated with the file.
In October 2007, the Board denied the claim of service connection for bilateral hearing loss. The Veteran appealed the October 2007 decision to the United States Court of Appeals for Veterans Claims (Court). In February 2009, the Court remanded the appeal pursuant to a joint motion.
In August 2010, the Board remanded this claim for National Guard service records and a VA examination. Unfortunately, the Board finds there has not been compliance with the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran had three unique periods of service. He served on active duty in the Air Force from July 1953 to July 1966. From July 1966 to December 1967 he was a civilian. In December 1967, he enlisted in the Air Force Reserve. His Reserve service ended in December 1978. The same month he enlisted in the National Guard, where he remained until January 1981. He was a civilian from January 1981 to March 1982. From March 1982 to March 1983 he was in the National Guard. He was in the retired reserve from March 1983 to August 1993.
In February 2009, the Court granted a motion for remand pursuant to a January 2009 joint motion. The joint motion stated that the November 2006 VA examination was inadequate because the examiner did not comment on whether Veteran's hearing loss was either incurred or aggravated during his ACDUTRA periods, which took place after his active duty service in June 1966. The Board remanded this claim in August 2010 for National Guard records and for the examiner to give an opinion on whether Veteran's hearing loss was either incurred or aggravated during his ACDUTRA periods.
The October 2010 VA examination report stated that the Board was asking the examiner to speculate about the Veteran's military noise exposure and his hearing loss. The Board does not want the examiner to speculate, but wants the examiner to make a determination based on medical science. If the examiner cannot make a determination, the examiner needs to state why no determination may be made. Also, the examiner's opinion does not discuss whether Veteran's hearing loss was either incurred or aggravated during his ACDUTRA periods.
Additionally, the Veteran received the October 2010 VA examination before all of his National Guard service records were placed in the file (a Personnel Information Exchange System (PIES) response shows these records were received in April 2011).
On remand, the claims file should be returned to the examiner so that all records may be considered and an opinion can be made on whether Veteran's hearing loss was either incurred or aggravated during his ACDUTRA periods.
The examiner should be aware that service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). The phrase "active military, naval, or air service" from 38 U.S.C.A. § 1110 and § 1131 includes any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24)(B) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(a) (2010). The Court held that regulations concerning presumptive service connection, the presumption of soundness and the presumption of aggravation, were inapplicable to claims based upon ACDUTRA service. See (Valerie Y.) Smith v. Shinseki, 24 Vet. App. 40 (2010). This means that in order to grant the benefit, there needs to be a finding that the disability claimed was aggravated or incurred during a period of ACDUTRA. Smith, 24 Vet. App. at 46-47.
The Board is aware that the Veteran asserted he was only in the military from 1953 to 1966 at the October 2010 VA examination, but the February 2009 Order from the Court and the January 2009 joint remand instructed that the Veteran's ACDUTRA service specifically be addressed. In other words, an opinion is needed on whether Veteran's hearing loss was either incurred or aggravated during his ACDUTRA periods.
The Board will summarize the relevant information in the file for the examiner (this summary includes the National Guard records associated with the file in April 2011).
In a June 1966 examination, external otitis was noted from 1956. There were no complications or sequelae. The Veteran also reported ear, nose or throat trouble. Converted audiogram results are below (original measurements are listed in parentheses).
HERTZ
500
1000
2000
3000
4000
RIGHT
15 (0)
10 (0)
5 (-5)
10 (0)
50 (45)
LEFT
15 (0)
10 (0)
10 (0)
25 (15)
35 (30)
(The Board notes that service department audiometric examinations prior to November 1, 1967, are assumed to be American Standards Association (ASA) units and have been converted to International Standards Organization (ISO) units for proper comparison.)
June 1966 service personnel records indicate the Veteran wanted to separate from service to help run his family's saw mill. The Veteran's DD 214 shows he separated from active duty service in July 1966.
In December 1967, the Veteran enlisted in the Air Force Reserve. He reported frequent ear aches in the past, but stated he had none in the past two years. His usual occupation was a mechanic. It appears the Veteran was not on ACDUTRA at the time of the examination. Audiogram results are below.
HERTZ
500
1000
2000
3000
4000
RIGHT
-5
-5
-5
5
15
LEFT
-5
-5
-5
0
10
In August 1971, the Veteran reported no ear problems. His usual occupation was a millwright. The Veteran's August 2009 TDIU application shows his last occupation was also millwright (until 1995).
On August 14, 1972, the Veteran received a periodic examination. Service personnel records show the Veteran was on ACDUTRA from August 6-20, 1972. High frequency hearing loss was noted. Audiogram results are below. Hearing impairment for VA purposes was found in the left ear. 38 C.F.R. § 3.385 (2010).
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
0
20
35
LEFT
5
0
0
65
30
An August 16, 1975 periodic examination showed audiogram results as follows. Hearing impairment for VA purposes was found in both ears. Id. Service personnel records show that the Veteran was on ACDUTRA from July 20-August 3, 1975.
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
10
60
LEFT
5
5
5
20
45
In an August 1976 medical history report, the Veteran listed his regular occupation as a mechanic.
In August 1978, the Veteran completed a report of medical history for the National Guard. He reported no ear, nose or throat trouble. In September 1978, he underwent a report of medical examination for enlistment in the National Guard. His ears were normal upon clinical evaluation. A whispered voice test was 15/15 for both ears.
From January 1981 to March 1962, service personnel records show the Veteran was on a "break." In March 1982, he re-enlisted.
A February 1982 report of medical history shows the Veteran reported no ear trouble. In February 1982, a report of medical examination showed that a clinical evaluation was normal along with the following audiogram results:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
n/a
15
10
LEFT
5
10
n/a
10
10
In March 1983, the Veteran entered the retired reserve and was discharged in 1993.
In June 2005, a VA audiology consultation showed the Veteran reported gradually worsening hearing loss over the past 25 years (worse in the right ear) and a history of in-service noise exposure. His hearing aids were cleaned and checked. They were both working well. Audiologic evaluation showed a moderate to profound sensorineural hearing loss in the right ear and a mild to profound sensorineural hearing loss in the left ear. There was no significant change from his last evaluation. The pattern of hearing loss was indicative of noise exposure.
It was noted that due to the severity of the Veteran's hearing loss he would experience problems with activities of daily living; his hearing loss was greater than normal age-related loss.
At the November 2005 DRO hearing, the Veteran stated he was exposed to noise from the flight line while on active duty from July 1953 to July 1966 (Transcript, p 2). He did not wear hearing protection in the 1950s (Transcript, p 2). He got a hearing aid from VA in December 2002 (Transcript, p 3).
In November 2006 a VA audiology examination showed the claims file was reviewed. The examiner did not discuss the fact that the Veteran had a 65 at 3000 Hertz in 1972 and did not address whether the Veteran's hearing loss was incurred or aggravated while he was on ACDUTRA (during his Reserve or National Guard Service). The October 2010 examination report did state that the current hearing loss was not likely related to or caused by military hearing exposure between 1953 and 1966, but did not did not address whether the Veteran's hearing loss was incurred or aggravated while he was on ACDUTRA (after 1966), or during his Reserve or National Guard Service.
Compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to assure compliance. Stegall, 11 Vet. App. at 271.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. Return the claims file to the October 2010 VA examiner, or transfer the file to a new examiner if necessary. The claims folder and a copy of this Remand must be made available to the examiner. The examiner should determine the etiology of the Veteran's bilateral hearing loss disability, taking into account the periods of ACDUTRA after 1966 during Reserve and National Guard service. The examiner should reference the:
* June 1966 audiogram (separation from active duty service);
* December 1967 audiogram (entrance into Air Force Reserve service);
* August 1972 audiogram (taken during ACDUTRA service) ;
* August 1975 audiogram (not taken during ACDUTRA service);
* February 1982 audiogram;
* records noting the Veteran's occupation as a millwright (August 2009 TDIU application) and a mechanic (August 1976 medical history report); and the
* June 2005 VA audiology consultation which notes the Veteran's hearing was greater than normal age-related loss.
The rationale for all opinions should be provided. If the examiner cannot make a determination without resorting to speculation, the examiner must state why a determination may not be made.
2. Re-adjudicate the Veteran's claim for bilateral hearing loss on appeal. If the claim remains denied, provide the Veteran and his attorney representative with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include the applicable law and regulations considered pertinent to the issue remaining on appeal as well as a summary of the evidence of record. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2010).